The African Commission’s Working Group on Indigenous Populations/ Communities (Working Group) undertook a mission to the Republic of Botswana from 15 – 23 June 2005. The delegation of the Working Group comprised Commissioner Andrew Ranganayi Chigovera, Chairperson of the Working Group on Indigenous Populations/ Communities; and Dr. Naomi Kipuri – Member of the Working Group. The mission was accompanied by Secretariat staff member Robert Eno.

Objectives of the Mission

The general aim of the Mission was therefore to execute the mandate of the Working Group and of the African Commission. The specific objectives of the Mission were inter alia, to:

Verify allegations of maltreatment and violation of the human rights of the Basarwa community;

Gather information on the situation of indigenous populations in Botswana;

Engage the Government of the Republic of Botswana in dialogue on the situation of indigenous populations in particular and its relationship with the African Commission as a whole;

Engage civil society on its role in the promotion and protection of the rights of indigenous populations in Botswana; and

Visit and discuss with indigenous communities to understand the problems, if any, affecting the effective enjoyment of their human rights.

Recommendations

The African Commission is seriously concerned at the poor literacy and high dropout rate of the Basarwa learners and is worried that this might retard the development of the Basarwa community for generations to come. The Government should therefore take urgent steps to introduce appropriate measures, including mother tongue education for Basarwa for at least the first five years of primary education. As there are several languages, the Government might introduce village schools for Basarwa pupils of each village and train teachers to teach in their languages. It would be necessary for the Government to employ positive discrimination in favour of the Basarwa and adopt policies that would encourage and facilitate the education of the Basarwa.

Village schools should be established in each village, which will provide mother tongue education up to grade five. The Government should train teachers, preferably persons from the Basarwa community, to teach the pupils. Free education up to grade 12 should be instituted for Basarwa learners. Those who dropout of school should be trained in appropriate vocational activities such as carpentry, bricklaying and other professions such as nursing and tourist guides.

The African Commission is also concerned about the stereotyped public attitude and prejudice against the Basarwa, some of it from high-ranking officials. The Government should not only criminalize acts of racial discrimination but should take steps to ensure that all racial manifestations are dealt with in accordance with internationally recognized prescriptions, including Article 2 of the African Charter and Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The Commission notes that the relocation exercise was hasty, uncoordinated and failed to meet minimum international standards, especially General Recommendation XXIII of the UN Committee on the Elimination of Racial Discrimination which recommended that “no decisions directly relating to the rights and interests of members of indigenous peoples be taken without their informed consent”. Considering the fact that the relocation exercise has already taken place, the Government should continue consultations with the Basarwa, NGOs and other stakeholders. Negotiations should include inter alia, capacity building, including appropriate training for the Basarwa, the type of development model they would prefer and providing them with either individual or communal rights to land. The Government should engage those still in the reserve in more consultation and reinstall services for them. The Government should open up the possibility of allowing people that wish to go back to the CKGR to do so. The Commission recommends that the Government take steps to facilitate the acquisition of land by the Basarwa, such that the Basarwa will in practice be able to acquire land, especially on a communal basis, as this is crucial for them to sustain their livelihood. If needed, the Commission also recommends that the Government employs affirmative action measures in this respect.

The lack of representation at all levels of the political structure is probably one of the reasons why the Basarwa grievances have not been adequately articulated within Government circles. The Government should adopt affirmative action policies to assist the Basarwa develop political representation and provide quota representation for them at various levels of the political ladder.

The Government should explore the possibility of establishing community zones/conservancies in areas that are predominantly Basarwa and train the Basarwa in wildlife management and conservation. They can also be trained as tourist guides and in other activities that would enable them to regard the forest and its resources as theirs. The Government of the Republic of Botswana should consider the experiences of conservancies being practiced in neighbouring Namibia.

The Government should reassess its policy of denying the existence of indigenous populations in Botswana and instead take steps to comply with its international obligations regarding the treatment of indigenous peoples. To this end, the Government should also ratify the ILO Convention 169 on Indigenous and Tribal Peoples.

The African Commission also notes that Botswana operates under the dualist legal system whereby international treaties and conventions ratified do not form part of the domestic law unless incorporated by an Act of Parliament. To date, however, none of the international human rights instruments Botswana has ratified have been incorporated into domestic law. The African Commission urges the Government to take the necessary steps to ensure the incorporation of international instruments into its domestic legislation in conformity with the African Commission’s Resolution on the Integration of the Provisions of the African Charter on Human and Peoples’ Rights into National Laws of States adopted at its 5th Ordinary Session held in Benghazi, Libya from 3 – 14 April 1989.

The Government should adopt a participatory approach when developing policies with a bearing on the Basarwa people, such as policies on land, natural resources, relocation and poverty alleviation. The Basarwa must be properly consulted in order for them to have a say on policies that will affect their future.

The Botswana Constitution makes no explicit reference to indigenous peoples or minorities and the protection of fundamental rights in the Constitution is subject to numerous qualifications such as mental health, legal findings, suspicion of wrongdoing, underage, national security, state of emergency, for greater benefit, etc. This broad range of restrictions makes it difficult for individuals, especially indigenous communities, which are generally illiterate. While the Commission recognizes the Government’s desire to establish an equitable society through the adoption of an ethnically neutral constitution, it is of the view that such a society can only be attained if all members of the society are raised to a level where they are able to access their rights on an equal footing. At the moment, the Basarwa are largely disadvantaged. The Government should institute affirmative action legislation or policies that favour the Basarwa in all sectors of the economy, including political representation, education, health care, etc.

The African Commission notes with concern that in spite of the fact that Botswana ratified the African Charter in 1986, it has not submitted a single report to the African Commission. The African Commission therefore urges Botswana to submit its State Reports to the African Commission in conformity with Article 62 of the African Charter. The African Commission recommends that Botswana indicate in its report to it the measures it has taken to implement the above recommendations and any difficulties it might be facing in implementing them.